Yarmouth residents sue to keep antenna off water tower

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YARMOUTH — Two residents have filed an appeal in Maine Superior Court against the town’s approval of a Verizon Wireless plan to install an antenna on a local water tank.

Leora Rabin and Frederick Olson are contesting the Planning Board’s Sept. 28 approval of Verizon’s application to install an antenna on the tank at 14 McCartney St.

“I think there should be a high level of scrutiny, and I don’t think the Planning Board did its due diligence,” said Rabin, who lives one street away from the water tower on Glen Road.

Olson lives even closer to the tower, which is less than 50 feet from the edge of his property.

Town Planner Alex Jaegerman said the town attorney has submitted a letter to the court saying it supports the Planning Board’s decision.

Since the town replied to the court Feb. 6, Bessey now has two weeks to send a reply before the judge will make a decision.

The decision can based on written arguments, or the judge could ask the parties, including Verizon, to present oral arguments.

Bessey said if the judge rules in favor of Rabin and Olson, Verizon will have to go back to the Planning Board for reconsideration.

Rabin and Olson, who are being represented by Nathaniel Bessey of the Lewiston-based firm Brann & Isaacson, argue that the Planning Board violated the town’s zoning ordinance by approving Verizon’s application. 

“I think the biggest concern is whether the Planning Board thoroughly reviews ordinances and examines concerns,” Rabin said.

The appeal cites a 2001 application from Sprint to place an antenna on top of the water tank, which was denied by the Yarmouth Planning Board. The board’s finding of facts ends with a now crossed-out statement saying that “this finding may be referenced by the applicant, or future applicants proposing similar equipment, as evidence that location at the water tank is not ‘technically feasible'” under the town zoning ordinance sections Z.8.a and Z.9.c.

Jaegerman said he can’t be entirely certain when or why the passage was crossed out, but believes it was crossed out because it was incorrect.

The relevant sections of the ordinance say that wireless telecommunication facilities can’t be in areas of high visibility unless no other location is feasible, and that other more feasible locations must be investigated if the proposed area is highly visible. Jaegerman said these didn’t apply to the Sprint application because the company wasn’t proposing to build a new tower.

Also crossed out on the 2001 finding of facts was the statement, “This water tank is unable to accommodate similar equipment that may be proposed in the future” as required by the town zoning ordinance section Z.4.a.(3).

Section Z.4.a.(3) states that if an alternative tower structure, in this case the water tank, is found to be unsuitable for accommodating an antenna, it will be presumed unsuitable for future applicants as well.

Rabin, and the appeal, said based on section Z.4.a.(3) of the ordinance and the fact the Planning Board denied Sprint’s application, Verizon’s application should also have been denied. 

“The position we have is that this is very similar,” Bessey said. “The Planning Board needs to tell us what’s different.”

Jaegerman, however, said the Planning Board in 2001 didn’t rule the water tank was unable to accommodate Sprint’s antenna. The board denied the application because equipment Sprint wanted to place on the ground would have been too close to Olson’s property line.

Verizon initially proposed a similar plan when the company first applied to place the antenna last year. When the Planning Board conducted a site walk in June, members had concerns about the location of an equipment enclosure box planned for the base of the tower.

But in the approved application, Verizon made the box smaller, and moved it closer to the street and farther away from two abutting residential properties.

Rabin said she spoke against the project at several Planning Board meetings, as well as at a Town Council meeting.

While she said she “recognizes that wireless antennas need to be placed somewhere,” she wishes Verizon didn’t want to put one on a water tank situated between the Yarmouth elementary and high schools.

“As a physician, health concerns are an issue,” she said. “The kids could be exposed potentially and none of the parents were notified.”

Jaegerman in October said the antenna will meet the radio frequency wave regulation set by the Federal Communications Commission. 

Kate Gardner can be reached at 781-3661 ext. 125 or kgardner@theforecaster.net. Follow her on Twitter: @katevgardner.

Leora Rabin and Frederick Olson, whose property line is less than 50 feet from the water tank on McCartney Street in Yarmouth, are appealing the Planning Board’s approval of a cellular antenna on top of the tank.

I'm a reporter for The Forecaster covering Freeport, Yarmouth, Chebeague Island, and Cape Elizabeth. I'm from a small town in NH no one's ever heard of. When not reporting, I can be found eating pasta and reading books, often at the same time.